Jul 19, 2010

Government Regulation and New Media

Jing Ke
July, 2010
Course Title: Law and the Challenges of New Media

“The contemporary history of new media has been characterized by conflict over the role of government in regulating the development of new media technologies and their uses.”

The development of human civilization is, to some extent, the history of technological innovations and the recognition as well as utilization of them by human beings. However, it is not unusual in history that the impacts and effects of technological innovations being under-estimated due to the ignorance of the complexity of human nature. The issue of regulating and guiding the development of new technologies needs to be more carefully pondered when we focus on the field of information communication technologies, for the reason that information communication is the lifeboat of human activities and social development. Generally speaking, the functions of mass media can be summarized as informing the audience, forming public opinion, educating, entertaining, and serving the economic, cultural as well as political systems of the society, and so forth. Accordingly, considering the influential functions of mass media, the importance of government regulation and intervention over new media technologies in the practice of using them in society needs to be stressed.

As a matter of fact, the contemporary history of new media, since the 1930s radio broadcasting and later cable TV to today’s Internet, witnesses a conflict over the role of government in regulating the development of new media technologies and their uses. Take the development of radio broadcasting industry in the United States, Britain and Canada for example, as it has been depicted in Dewar’s article, though the radio broadcasting landscape was almost the same in the three nations at its infancy, distinctness emerged after years of development and heated debate arose in these nations concerning the role of government in regulating radio broadcasting activities.

The radio boom in the US in 1921-22 brought in a growing disorder to the country’s airwaves, the profit source was mainly point-to-point communication at that time, and the development of radio broadcasting was dominated by powerful corporations such as the RCA-GE-AT&T alliance. However, the increased capital cost and programming cost made the financing of radio broadcasting became a major problem in the development of this new industry. Under the influence of the rapidly expanding advertising industry and the success of AT&T’s “toll broadcasting” experiment, advertising gradually became a solution to the radio’s growing financial problem. Commercialization advanced slowly and more direct advertising began to be used. In the light of 1927 Radio Act passed by the Congress and years of market development, the American government eventually established a policy of regulation of a privately-owned system based on the commercial profitability of the medium, particularly for advertising by the early 1930s. The radio broadcasting in the US is very capitalist, following the faith of free market economy.

The radio broadcasting model of Great Britain was considerably influenced by the earlier experience of US. Since the late 1920s, British government started to adopt a sharply contrasting broadcasting policy compared with the United States. The BBC was established in 1922 as a government-sponsored company which provides radio programs to the public. As a result of the upcoming heated debate on patent control and licensing policy, the BBC’s structure was radically altered and it finally became a public corporation in 1927 in order to protect the nation’s radio broadcasting industry from foreign competition and revenue crisis. I personally hold that the shape of the British broadcasting model is also largely influenced by the nation’s political system and government structure: the parliamentary system with multi-party competition necessitates a strong state-owned broadcasting system to minimize the partisanship in radio broadcasting in order to cater public interest. As a result, in the 1930s, the British government eventually created a completely state-owned system based on a concept of radio as a “public service”. The radio broadcasting system of UK is public funded and has a low degree of commercialization.

Learned from the already formed British and US pattern and their strengths and weaknesses, Canadian Federal Government intended to draw a balance between public interests (high quality programming) and financial interests (commercial success) in the development of radio broadcasting industry. As a matter of fact, the distinctive mixed public-private broadcasting system of Canada emerged from particular Canadian conditions as well as the technical and economic factors during that period. On the one hand, the limited local market size and audience number failed to attract large amount of advertising revenue to survive the broadcasting in a highly commercialized environment as in the US. On the other hand, the federal government intended to control the spread of direct advertising and protect domestic radio broadcasting by set up licensing policy. The debate on public ownership of radio broadcasting lasted for years, and both sides agreed that government assistance was necessary. The pressure of financing the radio broadcasting system in combination with the needs of a co-existing of both press and radio broadcasting in Canada brought in the distinctive mixed public-private broadcasting system in the late 1930s.

By reviewing the history of radio broadcasting of the three nations, one can easily observe that government plays an indispensible role in regulating the development of radio broadcasting industry, basically by means of licensing policies and varied legislations. From my perspective, the fundamental function of legislation and law in a society is to solve problems, to regulate the entire social activities and to maximize public interests and personal interests while keep a balance between the two. Besides that, we should not ignore that the legislation and law passed by a government also represent the will of the nation and protect its interests in both domestic and international competition. With regard to radio broadcasting industry in the US, Britain and Canada, distinctive laws passed by government represent the government’s will on how to regulate, guide and curb the development of this industry. The US privately-owned system based on the commercial profitability, and the British state-owned system based on a concept of radio as a “public service”, as well as the Canadian mixed public-private broadcasting system were all established by means of government legislation. During the process, though different nations were facing their specific situation, the aim of regulating the development of radio broadcasting industry was the same: to keep a balance between public interest and commercial success and also strive to maximize both of them. This aim necessitates the intervention of government in any kind of political or economic system, since the practitioners’ self-regulation and the “invisible hand” of free market is not always reliable, especially in a field as important as radio broadcasting and mass communication.

In Canadian context, conflict exists between the federal and provincial governments over jurisdiction to pass legislation regulating broadcasting and new media. As it is demonstrated in the Reference on Regulate and Control Radio Communication to the Supreme Court of Canada in 1931 and the Quebec Public Service Board v. Dionne Case in 1978 and so forth, the debate on who has the authority in regulating and controlling radio and television broadcasting and new media has become an eye-catching issue in Canada jurisdiction history. Based on my understanding, there are particular cultural, political as well as historical implications lie in the conflict, which make the issue sensitive and disputative.

As Rinfret J. and Lamont J. argued in the Reference 1931, the jurisdiction of federal government over radio communication is not exclusive, and the wide jurisdiction must be conceded to the Parliament only in the international field where control can only be assured by agreement or treaty between nations. However, as they argued, this issue became different in respect to the capturing of waves and the delivery of the messages they contain. Since the radio transmitting and receiving sets (cables in the Quebec Public Service Board v. Dionne Case) are all property operating within the province, the services they provide including capturing the wave and delivering the message are “localized”, and the resident of a province has the right to use them freely. Any legislation by the federal government that controls or limits the use of such property is an offense to the property and civil rights in the province. Accordingly, the authority to regulate and control that radio communication would be assigned to the provincial legislatures by B.N.A. Act, s.92.

However, as it was asserted by the other side of the debate, such argumentation was unduly simplistic and failed to consider the effects and outcomes of the uses of technology, more specifically, the uses of radio broadcasting as an important measure of information communication. The majority of the justice in these cases agreed that, B.N.A. Act, s.92 removes those works and undertakings which “connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province” from provincial authority, and radio/television broadcasting surely falls into this category. More importantly as they argued, the issue of radio broadcasting is not merely dealing with a transmitter or a receiver simply as pieces of property and equipment, it is dealing with information communication by means of these properties, and the effects of that means of communication cannot be confined within the limits of the province. As a matter of fact, it is undoubted that effects and influences of radio or television broadcasting are enormous and nation-wide.

As mentioned above, the functions of radio or television broadcasting as new measures of mass communication cover from informing to entertaining to educating and socializing the audience by varied programs and information they provide. The linguistic, cultural, ideological and political inclinations conveyed in the programs are so crucial for a unified nation that it has to be regulated and controlled in the authority of federal government. It is the only way to avoid a messy and troublesome situation in the development of this industry and to maintain the stability and unity of the nation.

The issue of Canada’s long-standing debate on regulating new media reminds me what happened earlier this year when Google stopped its Chinese search site (google.cn) in March and moved its branch from mainland China to Hong Kong in order to protest the content censorship requirement and control from Beijing the central government. In this case there is also a conflict lies in the uses of internet search engine as a new technology: on the one hand it is Google’s commercial profitability and the faith of freedom of expression as the cornerstone of a free democratic society; on the other hand it is the will and interest of Chinese government who wishes to keep a “harmonious society” (or for the “greater good”) by censoring the internet content. I’m not advocating strong censorship policies over online expression here; I personally have had enough experience of that. But I do admit that everything exists for a reason. The implications and impacts of new technology, in this case it is the use of internet search engine which would provide access to any kind of information to its users, have to be considered seriously, and the particular conditions of the nation must be taken into account. Sometimes the effects of new media technologies are so huge that strong government control and intervention is a must, this applies in any political, economic, cultural or ideological system. (Interestingly, not until last week, Chinese government issued a new ICP license to Google and allowed it to continue to provide web search and local products to users in China. Though users can click a link and search via Hong Kong to get the uncensored results, no compromise has been made on content censoring in the Chinese search site. Obviously, commercial profitability wins out in this case since Google's stock price has dropped about 18% since it pulled out of China.)

From my perspective, nothing is more complicated than dealing with social life issues and human nature. When a new media technology has been invented, no matter it is the printing press, the telegraphy, or radio, television and internet, its effects and implications have always turned out to exceed our expectations. Effective regulation means a more robust industry and a more ordered society which benefits from the new technologies. That is the reason why in a modern democratic state, the executive, the legislature and the judiciary systems need to play important roles in regulating the development and the use of new media.